Disciplinary Policy & Procedure

Transcription

1 Disciplinary Policy & Procedure Authors: Jane Armstrong Head of HR Date Reviewed August 2014 Critical Readers Senior Leadership Team Final Approval Senior Leadership Team Next Review June 2018 Date Read September 2014 Date Approved December 2014 Date issued June 2016 HR123 Disciplinary policy & procedure This policy & procedure has been issued as a mandatory read on The Loop. 1

2 Contents 1 INTRODUCTION 4 2 POLICY STATEMENT 4 3 DISCIPLINARY POLICY & PROCEDURE 5 4 DISCIPLINARY PROCEDURE STAGE 1 FIRST WRITTEN WARNING STAGE 2 - FINAL WRITTEN WARNING STAGE 3 - DISMISSAL OR OTHER CONTRACTUAL PENALTY SUCH AS LOSS OF SENIORITY 7 5 SUMMARY DISMISSAL 8 6 GROSS MISCONDUCT 8 7 SUSPENSION 9 8 APPEALS PROCEDURE 9 9 SPECIAL CONSIDERATIONS THE DBS, PROFESSIONAL CODES OF CONDUCT AND REFERRAL TO EXTERNAL BODIES 11 APPENDIX 1 DISCIPLINARY PROCEDURE FLOWCHART 12 Related Policies, References / Recommended Reading 2

3 HR123 Disciplinary policy & procedure Distribution List Department Chief Executive s Office Volunteers Head of Facilities / Maintenance & site development Catering Manager House Services manager (3 copies Housekeeping + Porters + Reception) IT Manager Director of Finance & Company Secretary Office Finance Procurement Officer Human Resources Health & Safety Manager Library Fundraising Director of Clinical Services Brain Injury Community Team Brain Injury Specialist (Sheffield & Nottingham) Director of Service Development & Commissioning Head of Clinical Education Head of Nursing & Care Mulberry House Camelia House Maple House Oak House Hawthorn House Social Workers + Parents Resource Centre (2 copies) Consultants & Doctors X-ray New Cheyne Centre The Children s Trust School Head of Retail Charity Shops: Surrey Charity Shops: Sussex & Kent STC (for info) 3

4 HR123 Disciplinary policy & procedure 1 INTRODUCTION 1.1 The Children s Trust will, through its job descriptions, induction and training processes, policies and procedures and this disciplinary policy, ensure that staff are made aware of the expected standards of conduct and work performance, and that they are supported in this. 1.2 Because of the nature of the work that The Children s Trust does, it is important that all members of staff embrace its values and ethos, which in turn will help the organisation achieve its strategic plans and mission. 1.3 The Children s Trust values are: Child & family focused Caring and Supportive Professional Collaborative Can do Fun 2 POLICY STATEMENT 2.1 This policy (which applies to all staff who have passed their probationary period) is designed to ensure a fair and consistent approach to maintaining standards of conduct and working relationships. 2.2 Managers will where appropriate deal with minor disciplinary issues in an informal way. This procedure is intended for use where an informal approach fails or where the misconduct is considered to be more than minor. 2.3 This procedure is used to deal with misconduct. There are separate policies to deal with Poor Performance (HR118) or for managing issues during a Probationary period (HR 119). There is also a policy for dealing with Attendance and Wellbeing at work (HR 122). 2.4 There may be occasions when additional support is required from either Occupational Health, Human Resources (HR) or the employee assistance scheme, Workplace Options (Freephone tel: ). 2.5 Reference to manager within this policy implies a member of The Children s Trust staff with responsibility for managing other staff within the organisation e.g. Team leader, supervisor, manager, senior manager/director. The role of the HR team is to provide support and advice to all parties involved in the disciplinary process. They will support the investigation process as well as assisting the manager who chairs a disciplinary hearing. They will work to ensure that this policy is followed and that misconduct issues are dealt with fairly. 4

5 3 DISCIPLINARY POLICY & PROCEDURE 3.1 HR will be informed of all issues that lead to a disciplinary investigation. All disciplinary issues will be investigated and dealt with as quickly as possible. The investigator will aim to complete the investigation within 2 weeks. If the investigation takes longer than stipulated, the employee will be kept informed. Managers are responsible for telling the employee that a matter is being investigated at the outset and also for keeping the employee informed of progress. 3.2 An investigator will be appointed by the manager, who is independent of the issue. A list of trained investigators is available from HR. S/he will review and collate the evidence and interview relevant witnesses, (including the employee against whom the allegations/issues have been raised) in an investigative meeting and take statements. These statements will be sent to each individual who provided them to check, sign and return them. The investigating officer will compile a report and make recommendations regarding whether or not there is a disciplinary case to answer or whether for example, the matter can be dealt with informally/in some other way. The report will then be reviewed by the manager, who in consultation with HR, will make the decision on whether or not to hold a disciplinary hearing. 3.3 Investigative interviews are solely for the purpose of fact-finding and no decision on disciplinary action will be taken until after a disciplinary hearing has been held. 3.4 The employee does not normally have the right to bring a companion to an investigative interview. However, the investigator may at their discretion allow the employee to bring a companion if they are unable to support themselves and in particular where it helps them to overcome any disability, or any difficulty in understanding English. 3.5 The employee must co-operate fully and promptly in any investigation. This will include informing the investigator of the names of any relevant witnesses, disclosing any relevant documents and attending investigative interviews if required. When a disciplinary hearing is held, employees will be given advance written notice by the manager, stating the date, time, venue and reasons for the hearing and giving sufficient time to enable them to prepare. They will be informed of the right to be accompanied at the hearing by a companion (a colleague or certified Trade Union official), and provided with a statement of the reason for the hearing, and copies of any relevant documentary evidence (including witness statements). The employee must tell the manager who their chosen companion is, in good time before the hearing. 3.6 The Children s Trust and/or the employee may ask relevant witnesses to appear at the hearing. The employee should give sufficient advance notice to the organisation to arrange the witnesses attendance. It will not normally be permitted to cross-examine witnesses unless, in exceptional circumstances, the manager decides that a fair hearing could not be held otherwise. 3.7 The employee must take all reasonable steps to attend the hearing, which will be attended by the manager who will chair the hearing, and may include another member of staff who is independent in order to take notes of the hearing and to witness what is said. A member of the Human Resources Department will usually be present. 5

6 3.8 No disciplinary action will be taken without the employee being given the opportunity to state their case, answer any allegations that have been put, ask questions, present evidence, raise points about any information provided by witnesses and, if necessary, call relevant witnesses on their behalf. 3.9 Employees should make every effort to attend disciplinary hearings. If the employee fails to attend a disciplinary hearing without a reasonable explanation or without suggesting a reasonable alternative date then the hearing will go ahead in the employee s absence and the manager will make a decision based on the evidence before him/her. If the employee is unable to attend the hearing, but gives a reasonable explanation (for example their companion cannot attend) the employee may offer an alternative date within 5 days of the original date. If the employee fails to attend through circumstances outside their control, e.g. illness, the organisation may arrange another hearing within 5 days and advise the employee that, if they fail to attend again the organisation may make a decision on the evidence available. If the employee is off sick, they may still be asked to attend the re-arranged hearing if they are fit to be at the hearing and are able to follow the proceedings If the employee and their companion are still unable to attend the rearranged hearing, the employee may wish to make a written submission. The manager who is due to chair the hearing will come to a reasonable decision by reviewing all of the relevant evidence including the employee s disciplinary record and general work record, the level of seriousness of the issue and any medical opinion regarding the employee s fitness to attend the hearing along with any written submissions from the employee (if applicable). The manager will reach a decision in their absence. A letter will be sent to the employee s home address confirming the decision and giving the right of appeal The manager may adjourn the disciplinary hearing if s/he needs to carry out any further investigations such as re-interviewing witnesses in the light of any new points raised at the hearing. The employee will be given a reasonable opportunity to consider any new information obtained before the hearing is reconvened The manager will inform the employee in writing of their decision and the reasons for it, usually within one week of the disciplinary hearing. Where possible this information will also be explained to the employee in person No employee will be dismissed for a first breach of discipline, except in cases of gross misconduct when the penalty will be dismissal without notice or pay in lieu of notice If the employee s first misconduct is sufficiently serious, it may be appropriate to move directly to a final written warning. This might occur when the employee s actions have had, or are liable to have, a serious or harmful impact on the organisation Every employee will have the right to appeal against sanctions imposed at stages 1, 2 and 3 of the procedure and will be informed how to do so. Where possible, a more senior manager will hear the appeal, although this is not essential, as long as the appeal manager has the authority to over-rule the original decision. The decision of the appeal manager will be final. 6

7 3.16 Confidential records of all disciplinary hearings will be held on the employee's personal file. Once spent (expired), warnings will be disregarded for the purpose of escalating the disciplinary process, but may be taken into account in any future redundancy selection process. If an employee s conduct deteriorates soon after a warning expires, the disciplinary record will be born in mind when considering how long any new warnings will last It is expected that staff will act with the utmost honesty and integrity at all times. The Children s Trust sees it as the duty of each member of staff to report any acts of misconduct or dishonesty and any perceived breach of statutory requirements whether that is their own misconduct or that of other employees. Failure to report acts of misconduct or co-operate with a reasonable investigation may in themselves constitute a matter for disciplinary action This policy is non-contractual and The Children s Trust reserves the right to modify, withdraw or initiate any rules or procedures it deems necessary, and will undertake to review the procedure in the light of changing working practices or legislation. Any significant changes will be communicated to all employees in writing. 4 DISCIPLINARY PROCEDURE 4.1. STAGE 1 FIRST WRITTEN WARNING If an employee s conduct does not meet acceptable standards the employee will normally be given a formal first written warning. S/he will be advised of the reason for the warning, that it is the first stage of the disciplinary procedure and will be given details of the change in behaviour required and told of his or her right of appeal. A copy of the warning will be kept on the employee's file but it will be disregarded for disciplinary purposes after a set period, (e.g. 12 months) subject to satisfactory conduct throughout. The employee will also be advised that a further act of misconduct would normally result in a final written warning STAGE 2 - FINAL WRITTEN WARNING If there is still a failure to improve and conduct is still unsatisfactory, or if the misconduct is sufficiently serious to warrant only one written warning but insufficiently serious to justify dismissal, a final written warning will normally be given to the employee. This will give details of the issue along with the change in behaviours required and will warn that dismissal or some other contractual penalty such as loss of seniority may result if there is no satisfactory improvement or if further misconduct occurs and will advise of the right of appeal. A copy of this final written warning will be kept on the employee's file but it will be disregarded for disciplinary purposes after a set period, (e.g. 18 months) subject to achieving and sustaining satisfactory conduct throughout STAGE 3 - DISMISSAL OR OTHER CONTRACTUAL PENALTY SUCH AS LOSS OF SENIORITY If conduct is still unsatisfactory and the employee still fails to reach the prescribed required standards, or if the offence is sufficiently serious, dismissal will normally result. The employee will be provided, as soon as reasonably practicable, with written reasons for the 7

8 dismissal, the date on which the employment will terminate, the appropriate period of notice (or pay in lieu of notice) and the right of appeal. If occasion warrants, some other contractual penalty such as demotion, transfer (subject to a suitable post being available), loss of pay or increment and/or suspension without pay, may be applied. If an alternative sanction to dismissal is applied, the employee will receive details of the complaint and will be warned that dismissal may result if there is no sustained improvement in conduct or if further misconduct occurs. S/he will be advised of the right of appeal. A copy of the written warning will be placed on the employee s file, but will be disregarded for disciplinary purposes after a set period (e.g. 24 months) subject to achieving and sustaining improved standard of conduct. 5 SUMMARY DISMISSAL Summary dismissal shall only apply in cases of gross misconduct. Examples of the type of offence that might lead to summary dismissal are shown under the heading gross misconduct. This is not an exhaustive list but is given as a guide to the level of seriousness. 6 GROSS MISCONDUCT The following provides examples of offences which are normally regarded as gross misconduct and is not exhaustive: child abuse (as defined in The Children s Trust's Safeguarding Policy) theft, fraud, falsification of records, timesheets or self-certification forms physical and verbal violence, including threats bullying or harassment, including sexual or racial harassment or intimidation; discrimination gross breaches of the organisation s IT policies or inappropriate use of mobile phones or social media in a way that harms The Children s Trust, its staff or its service users/stakeholders deliberate damage to property belonging to The Children s Trust being under the influence/using alcohol or non-prescribed drugs or illegal smoking substances whilst at work; smoking at work or in non-prescribed areas of The Children s Trust sites sleeping whilst on duty negligence with regard to the health, safety and welfare of self or others failure to comply with reasonable management instructions any serious act of insubordination acceptance of any gifts, inducements or hospitality in return for placing of contracts for purchase of materials, equipment or supplies, or the supply of information gross inefficiency or neglect of duty breach of confidentiality wilful defiance of the organisation s policies, rules and procedures breaches of The Children s Trust policies, rules or procedures failure to maintain professional registration or to update/register for a 8

9 Disclosure and Barring Service check any conduct which in the reasonable opinion of The Children s Trust brings the employee or the organisation into disrepute, including outside of the employee s working hours 7 SUSPENSION In certain circumstances, suspension may be appropriate whilst a case is being investigated. If an employee is suspended, the reasons for the suspension will be explained by the person carrying out the suspension (or by the line manager). It will also be explained that suspension is a neutral act. Suspension of this kind is not a disciplinary penalty and does not imply that any decision has already been made about the allegations. An employee may normally be suspended on full pay pending an investigation. However there may be certain circumstances where suspension is without pay. As an alternative to suspension, The Children s Trust reserves the right to insist that the employee is accompanied whilst performing their duties, or to temporarily redeploy the employee to alternative duties/house/department. An employee will not be suspended without careful consideration and suspension will not be unnecessarily protracted. It will be reviewed regularly and if the period of suspension is likely to be longer than stipulated then this will be explained to the employee. Whilst suspended from work, employees must make themselves available to answer questions about work related matters or to attend investigatory meetings and any hearing that might take place. Apart from these meetings, they are asked not to attend work premises or contact other staff, services users or stakeholders without prior permission from the manager who carried out their suspension or the Director of People and Operations or the Head of HR. They must not discuss the details of their case with others at The Children s Trust. This will not however prevent them from contacting their companion in order to prepare their case for a hearing. Sickness during suspension will count towards the sickness absence record, but the rules of suspension will apply and employees will be asked to attend investigation meetings and hearings if they are fit enough to follow proceedings. Support and advice during any suspension period will be supplied internally by the manager and/or a nominated HR representative. The manager will provide pastoral support and the HR representative will provide advice about the disciplinary procedure and the investigation. External advice can also be obtained from The Children s Trust s employee assistance scheme, Workplace Options who are specialists in providing employment and emotional support. Workplace Options advice is provided completely confidentially. It is free for staff and volunteers to use. 8 APPEALS PROCEDURE An employee who wishes to appeal against a disciplinary decision should do so in writing to the Head of Human Resources or the Director of People and Operations, giving grounds for the appeal, within five working days of receipt of the written confirmation of the disciplinary decision. 9

10 If the employee is appealing against dismissal, the date on which dismissal takes effect will not be delayed pending the outcome of the appeal. However, if the appeal is successful the employee will be reinstated with no loss of continuity or pay. If the employee raises any new matters in their appeal, The Children s Trust may need to carry out further investigation. If any new information comes to light the employee will be provided with a summary including, where appropriate, copies of additional relevant documents and witness statements. The employee will have a reasonable opportunity to consider this information before the hearing. The employee will be given written notice of the date, time and place of the appeal hearing. This will normally be two to seven days after receipt of the written appeal notice. The appeal hearing may be a complete re-hearing of the matter or it may be a review of the fairness of the original decision in the light of the procedure that was followed and any new information that may have come to light. This will be at The Children s Trust s discretion depending on the circumstances of the case. In any event the appeal will be dealt with as impartially as possible. Where possible, a more senior manager who has not been previously involved in the case will hear the appeal, although this is not essential, as long as the manager hearing the appeal has the authority to over-rule the original decision. The manager hearing the appeal will be accompanied by another independent person in order to take notes and witness what is said. This may be a member of the Human Resources Team. All employees will have the right to be accompanied to an appeal hearing. The employee may bring a companion with them to the appeal hearing. During the appeal the employee or companion will be given the opportunity to present or comment on any new evidence arising before a decision is taken. The Children s Trust may adjourn the appeal hearing if there is a need to carry out any further investigations in the light of any new points raised by the employee or their companion at the appeal hearing. The employee will be given a reasonable opportunity to consider any new information obtained before the appeal hearing is reconvened. Following the appeal hearing The Children s Trust may: a) confirm the original decision; b) revoke the original decision; or c) substitute a different penalty. At the appeal any disciplinary penalty imposed will be reviewed but cannot be increased. The employee will be notified in writing of the results of the appeal and the reasons for the decision as soon as possible. The decision of the manager hearing the appeal will be final. There will be no further right of appeal. 9 SPECIAL CONSIDERATIONS 10

11 Where the employee s conduct is the subject of a criminal investigation, charge or conviction The Children s Trust will investigate the facts before deciding whether to take formal disciplinary action. The Children s Trust will not usually wait for the outcome of any prosecution before deciding what action, if any, to take. Where the employee is unable or has been advised not to attend a disciplinary hearing or say anything about a pending criminal matter, The Children s Trust may have to take a decision based on the available evidence. Criminal offences outside employment will not be treated as automatic reasons for dismissal. Consideration will be given as to whether the offence is one that makes the employee unsuitable for the work, unacceptable for other employment within The Children s Trust or whether for reasons of statute the employee is unable to carry on in the required role. Furthermore, if the nature of the offence committed is such that the fact the offence has been committed by the employee (albeit outside work) may cause damage to the reputation of The Children s Trust, then this may be deemed to be gross misconduct. The Children s Trust is under no obligation to provide employees with a reference for new posts. In cases where the employee is the subject of disciplinary action, or where the employee has been dismissed, The Children s Trust reserves the right to refuse to provide an employment reference. If a disciplinary warning is live on the employee s file, then this will be mentioned in any reference given. 10 THE DBS, PROFESSIONAL CODES OF CONDUCT AND REFERRAL TO EXTERNAL BODIES The Disclosure and Barring Services (DBS) was set up by the UK Government to safeguard vulnerable adults and children. The DBS maintain lists of individuals who are barred from working with these groups. In addition professional bodies such as the Nursing and Midwifery Council and the HCPC maintain their own professional codes of conduct and standards for maintaining professional standards of conduct and performance in order to safeguard and protect the interests of the public/service users. Failure to comply with these codes of conduct or standards is taken into account in disciplinary procedures. Following dismissal (or action short of dismissal such as demotion or transfer) The Children s Trust is required to make a decision about whether or not the staff member will need to be referred to these regulatory bodies. It will be the responsibility of the manager who chaired the hearing, in consultation with Human Resources, to make the referral. The employee will be informed of the referral. In addition, in any case that involves an alleged safeguarding issue, The Children s Trust is required to contact the Local Authority Designated Officer (LADO) and/or the regulatory bodies, CQC and Ofsted and supply personal details of any employee suspected of putting children/vulnerable adults at risk. The employee will be informed of this referral by their manager. 11

12 Appendix 1 Disciplinary Procedure Flowchart Procedure to be read in accordance with the policy Misconduct issue / line manager notified Line manager (with HR) decides whether to suspend if serious / gross misconduct or risk of harm HR notified Investigation undertaken by independent investigator Employee informed of investigation If suspending, meet employee and follow up in writing Investigator reports back to line manager copying HR Line manager decides appropriate action No further action Employee informed Give written notice of hearing and right to be accompanied If new evidence arises, take time to consider it. Discuss it with employee Formal action / hearing Formal hearing held Line manager considers all evidence Informal action Employee given informal warning / advice If employee is unable to attend (for good reason) reschedule within 5 days Disciplinary warning as per policy Right of appeal 12

13 HR123 Disciplinary Policy Related Policies [name & number] Issue Date Performance Improvement policy (HR 118) October 2011 Attendance & Wellbeing policy (HR 122) October